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finding "a mistake exist[ed] in our prior decisions" and "exercis[ing] our authority under Code § 17.1-402(D) [to] overrule [that decision]"
Summary of this case from Turner v. ComOpinion
Record No. 2837-08-4.
March 23, 2010.
Neal Goldberg (Teresa E. McGarrity; Office of the Public Defender, on briefs), for appellant.
Craig W. Stallard, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.
Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.
Duane Elmer Startin, Jr. ("Startin") appeals two convictions for use of a firearm during the commission of a felony, in violation of Code § 18.2-53.1. Before a panel of this Court, he argued that the trial court erred in finding that the evidence was sufficient to prove that (1) the item he used during the commission of two robberies was a "firearm," and (2) he used or attempted to use a firearm or displayed a firearm in a threatening manner. A divided panel of this Court affirmed Startin's convictions. See Startin v. Commonwealth, 54 Va. App. 778, 682 S.E.2d 115 (2009). We granted Startin's petition for rehearing en banc and stayed the mandate of the panel's decision. On rehearing en banc, we hold that the replica of a firearm that Startin used during the commission of two robberies is a firearm within the meaning of Code § 18.2-53.1. Therefore, we affirm Startin's convictions.
In his petition for rehearing en banc, Startin asked this Court to invoke the ends of justice exception to Rule 5A:18 and consider his argument that the evidence was insufficient to prove that he used or attempted to use a firearm in a threatening manner. He did not brief this argument, and, because this failure to adhere to Rule 5A:20(e) is significant, we are unable to consider the merits of that question presented. Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008).
BACKGROUND
On January 12, 2005, Startin entered a pharmacy, approached the pharmaceutical counter, and stated that he needed a bottle of Oxycontin. When the pharmacist asked Startin for his prescription, he lifted his shirt to reveal what looked like a black handgun tucked into the front of his pants. The clerk saw the gun but hesitated before Startin demanded that she "hurry up." The pharmacist gave him a bottle of generic Oxycodone ER. Startin left the store with the bottle.
Nine days later, Startin entered a different pharmacy and asked the pharmacist whether they stocked Oxycontin. After learning that the pharmacy had Oxycontin, Startin grabbed an object that appeared to be a black handgun from his waist-band and pointed it at the clerk. The clerk described the gun as an older model handgun but was unsure whether it was a pistol or revolver. When Startin ordered the pharmacist to give him the drugs, the pharmacist gave Startin a bottle containing one hundred pills.
After Startin was arrested, police recovered a "John Wayne Replica" .45 caliber handgun made by the Franklin Mint. This commemorative replica appears to be the same in size, weight, and shape as the original firearm. This replica, however, does not include a firing pin or other mechanical device necessary to fire a projectile. Startin told police that this was the object he used during the robberies.
Startin pled guilty to three counts of robbery but pled not guilty to two counts of use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. During his bench trial, Startin challenged whether the item he possessed met the definition of a firearm under Code § 18.2-53.1. As evidence in the trial, the parties stipulated that
[t]his weapon is a commemorative replica. In its outward appearance, including size, weight, and shape, it appears to be an operational firearm designed to expel .45 caliber ammunition by explosion. However, because the weapon was a replica, the manufacturer did not include a firing pin or other mechanical device necessary to fire a projectile by explosion.
Upon this proffer of the evidence, the trial court convicted Startin of two counts of use of a firearm during the commission of a felony. In pronouncing its judgment, the trial court cited several cases from both this Court and the Supreme Court of Virginia for the proposition that the items in these cases were held to be firearms because they appeared to be capable of firing. After discussing these cases, the trial court held, "the bottom line is that . . . the item that was used was a firearm, pursuant to Virginia Code § 18.2-53.1." This appeal followed.
II. ANALYSIS
Appellant relies on Sprouse v. Commonwealth, 19 Va.App. 548, 551-52, 453 S.E.2d 303, 305-06 (1995), to argue that a conviction under Code § 18.2-53.1 requires that the object displayed actually be a firearm and because the item he possessed was an inoperable, commemorative replica of a firearm, he cannot be convicted of using a firearm during the commission of a felony. The Commonwealth responds that Code § 18.2-53.1 "not only is aimed at preventing actual physical injury or death but also is designed to discourage criminal conduct that produces fear of physical harm." Holloman v. Commonwealth, 221 Va. 1%, 198, 269 S.E.2d 356, 358 (1980). Because the trial court found that appellant's commemorative replica firearm "appear[ed] to be an operational firearm designed to expel forty-five caliber ammunition," the Commonwealth contends that the replica firearm was a firearm for the purpose of Code § 18.2-53.1. On brief, the Commonwealth asks this Court to "at a minimum" limit Sprouse to the facts of that case and further asserted at oral argument that Sprouse was wrongly decided and should be overruled.
To support a conviction for use of a firearm during the commission of a felony, under Code § 18.2-53.1, the Commonwealth must prove
(1) that the accused "possessed" an object; (2) that this object was a "pistol, shotgun, rifle, or other firearm"; (3) that the accused "used or attempted to use the firearm or displayed the firearm in a threatening manner"; and (4) this action involving the firearm occurred during the commission or attempt to commit one of the felonies enumerated in the statute.
Thomas v. Commonwealth, 25 Va.App. 681, 684-85, 492 S.E.2d 460, 462 (1997) (citations omitted). Code § 18.2-53.1 neither defines firearm nor refers to any other statute that defines the term. Therefore, the task of interpreting what the General Assembly intended as the definition of firearm has fallen upon Virginia's courts. In construing the General Assembly's intent, "[e]ven though any ambiguity or reasonable doubt as to the meaning of a penal statute must be resolved in favor of an accused, nevertheless a defendant is not entitled to benefit from an `unreasonably restrictive interpretation of the statute.'" Holloman, 221 Va. at 198, 269 S.E.2d at 357 (quoting Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)).
The meaning of the term firearm as used in Code § 18.2-53.1 has frequently been considered by Virginia's courts. In order to decide this case, we must review prior decisions interpreting Code § 18.2-53.1, starting with the Supreme Court of Virginia's decision in Holloman. Holloman was convicted of the use of a firearm during the commission of rape. Id. at 197, 269 S.E.2d at 357. On appeal, Holloman challenged whether his use of a spring operated BB gun met the definition of firearm under Code § 18.2-53.1. Id. In finding Holloman guilty, the Supreme Court of Virginia interpreted the General Assembly's intent in crafting the legislation to broadly define firearm beyond its traditional definition. Id. at 198-99, 269 S.E.2d at 357-58; see also Armstrong v. Commonwealth, 36 Va.App. 312, 315, 549 S.E.2d 641, 643 (2001) (hereinafter Armstrong I), aff'd, 263 Va. 573, 562 S.E.2d 139 (2002) (hereinafter Armstrong II). Specifically, the Supreme Court of Virginia held that the evidence was sufficient to convict Holloman of using a firearm in violation of Code § 18.2-53.1 upon proof that Holloman "employed an instrument that gave the appearance of having a firing capability, whether or not the object actually had the capacity to propel a bullet by the force of gunpowder." Holloman, 221 Va. at 199, 269 S.E.2d at 358. The Supreme Court of Virginia's rationale for broadly interpreting the term firearm was twofold. First, it reasoned that the statute "`is [not only] to deter violent criminal conduct . . . but also . . . to discourage criminal conduct that produces fear of physical harm.'" Armstrong II, 263 Va. at 582, 562 S.E.2d at 144 (quoting Holloman, 221 Va. at 198, 269 S.E.2d at 358). Therefore, a "Victim of a crime can be intimidated as much by a revolver that does not fire bullets as by one that does.'" Id. Second, the Supreme Court of Virginia reasoned that, as a practical matter, a crime victim "cannot be required to distinguish between a loaded pistol and a spring gun when it is brandished during commission of a felony." Holloman, 221 Va. at 198, 269 S.E.2d at 358.
In 1994, the Supreme Court of Virginia revisited the definition of a firearm under Code § 18.2-53.1. In Yarborough v. Commonwealth, 247 Va. 215, 218-19, 441 S.E.2d 342, 344 (1994), the Court reversed a conviction where the evidence raised only a suspicion that Yarborough used a firearm while perpetrating a robbery. There, Yarborough approached a woman, informed her that "this is a stickup[,]" and demanded her money. Id. at 216-17, 441 S.E.2d at 343. Both of Yarborough's hands were in his pockets as he approached the woman and she saw "something protruding . . . from the right hand pocket of his jacket." Id. at 217, 441 S.E.2d at 343. In response, the woman gave Yarborough her money. Id. When he was apprehended a short time later, he had no weapons in his possession — only a chilled, unopened can of beer in one of his jacket pockets. Id. Despite a search of the area near where the crime occurred and where Yarborough was arrested, no weapon was found. Id. The Supreme Court of Virginia reversed his conviction because there was no evidence that Yarborough possessed anything other than an unopened can of beer and "evidence that Yarborough `may have had' a firearm in his possession create[d] merely a suspicion of guilt." Id. at 217-19, 441 S.E.2d at 343-44.
This Court later held that a rusted, inoperable revolver was a firearm within the meaning of Code § 18.2-53.1. Miller v. Commonwealth, 23 Va.App. 208, 211-13, 475 S.E.2d 828, 829-30 (1996). There, the evidence proved that the rusted revolver could not "be fired `because you couldn't put the ammo in it.'" Id. at 210, 475 S.E.2d at 829. The evidence further demonstrated "that a gunsmith would be able to restore the weapon, but would need to take the gun apart, then reassemble it." Id. The trial court "found that the rust on the gun did not affect its appearance" and "concluded that the weapon had not `lost its identity as a firearm.'" Id. at 213, 475 S.E.2d at 830. Based on this rationale, this Court held that the trial court did not err and affirmed Miller's conviction for use of a firearm in the commission of a felony. Id.
In 1997, this Court revisited whether the evidence was sufficient to support a conviction for use of a firearm during the commission of a felony in a case where the evidence proved that the object used was not a traditional firearm but was shown to be a BB gun that was "the size, weight and shape of a small handgun." Thomas, 25 Va.App. at 684, 492 S.E.2d at 462. This Court interpreted Yarborough and other cases to require that the Commonwealth prove four elements to convict under Code § 18.2-53.1:
(1) that the accused "possessed" an object; (2) that this object was a "pistol, shotgun, rifle, or other firearm"; (3) that the accused "used or attempted to use the firearm or displayed the firearm in a threatening manner"; and (4) this action involving the firearm occurred during the commission or attempt to commit one of the felonies enumerated in the statute.
Id. at 684-85, 492 S.E.2d at 462 (citations omitted). At the same time, this Court recognized that the Supreme Court of Virginia's interpretation of firearm under Code § 18.2-53.1 "includes some objects that are not capable of firing projectiles by an explosion of gunpowder." Id. at 685,
492 S.E.2d at 462. This Court stated that this definition would include "instruments that merely appear to have a firing capability because the General Assembly intended Code § 18.2-53.1 `to discourage criminal conduct that produces fear of physical harm' and the victim of a crime `can be intimidated as much by a revolver that does not fire bullets as by one that does.'" Id. at 686, 492 S.E.2d at 462 (quoting Holloman, 221 Va. at 198, 269 S.E.2d at 358). In further reliance on Holloman, this Court stated that "the Supreme Court [also] reasoned that, as a practical matter, a crime victim `cannot be required to distinguish between a loaded pistol and a spring gun when it is brandished during the commission of a felony.'" Id. at 685-86, 492 S.E.2d at 462 (quoting Holloman, 221 Va. at 198, 269 S.E.2d. at 358). This Court affirmed Thomas's convictions based on the direct evidence of the BB gun's appearance, as observed by the victim during the robbery and demonstrated by examination of the item entered into evidence. Id. at 687-88, 492 S.E.2d at 463. Specifically, this Court held "[a]ppellant contends the evidence was insufficient to prove that the BB pistol he used during his robbery of the victim was a `firearm' under Code § 18.2-53.1. Because the evidence proved that the BB pistol gave the appearance of having a firing capability, we disagree." Id. at 684, 492 S.E.2d at 462.
More recently, both this Court and the Supreme Court of Virginia have revisited the definition of firearm under Code § 18.2-53.1 in the context of an appeal for possession of a firearm by a convicted felon in violation of Code § 18.2-308.2. This Court, in a decision affirmed on appeal to the Supreme Court of Virginia, reiterated that the legislative intent behind Code § 18.2-53.1, unlike Code § 18.2-308.2, is to proscribe the use of any instrument that reasonably produces fear of physical harm to an individual. Armstrong I, 36 Va.App. at 318 n. 4, 549 S.E.2d at 643 n. 4. This Court's decision repeated the Supreme Court of Virginia's holding in Holloman stating,
When defining a term used in a statute but not defined by the General Assembly,
we give that phrase "`its ordinary meaning, given the context in which it is used.'" Sansom v. Board of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (quoting Department of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980)). "`The context may be examined by considering the other language used in the statute.'" Sansom, 257 Va. at 595, 514 S.E.2d at 349 (quoting City of Virginia Beach v. Board of Supervisors, 246 Va. 233, 236-37, 435 S.E.2d 382, 384 (1993)).
Jones v. Commonwealth, 276 Va. 121, 125, 661 S.E.2d 412, 414 (2008).
[o]ur decisions, as well as those of the Supreme Court of Virginia, have read the term "firearm," as used in Code § 18.2-53.1, to include "anything that the victim reasonably perceives to be a firearm, even though it may not in actuality be a weapon capable of firing a projectile by any means."
Id. (quoting Holloman, 221 Va. at 199, 269 S.E.2d at 358). In contrasting the term firearm used in Code § 18.2-308.2 with its use in Code § 18.2-53.1, this Court stated that
Jones [v. Commonwealth, 276 Va. 121, 661 S.E.2d 412 (2008),] differentiated a "firearm" in the possession of a convicted felon under Code § 18.2-308.2 from a "firearm" used in the commission of a felony under Code § 18.2-53.1. The basis for the distinction is not whether a weapon "designed or intended to expel projectiles by the discharge or explosion of gunpowder" actually works at the time of a felonious act. Rather, the distinction is that whatever object is used to perpetrate a felony (robbery, for instance) must reasonably create the perception in the victim of fear of harm. The victim must perceive that toy gun as a real firearm in order for the would-be robber to engender the necessary threat and intimidation to successfully complete his task and also be guilty of violating Code § 18.2-53.1.
Id.
The Supreme Court of Virginia affirmed this Court's decision in Armstrong I and reiterated its holding in Holloman. Armstrong II, 263 Va. at 581-82, 562 S.E.2d at 144. In doing so, the Supreme Court of Virginia again emphasized that in interpreting statutes, we must give effect to the legislative intent underlying that statute. Id. at 583, 562 S.E.2d at 145.
"Penal statutes must be `strictly construed against the State' and . . . `cannot be extended by implication or construction, or be made to embrace cases which are not within their letter and spirit.'" Commonwealth, Dep't of Motor Vehicles v. Athey, 261 Va. 385, 388, 542 S.E.2d 764, 766 (2001) (quoting Berry v. City of Chesapeake, 209 Va. 525, 526, 165 S.E.2d 291, 292 (1969)). However, although we construe statutes strictly in criminal cases, we will not apply "an unreasonably restrictive interpretation of the statute" that would subvert the legislative intent expressed therein. Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979).
Id. at 581, 562 S.E.2d at 144. The Supreme Court of Virginia reasoned that "[c]onsistent with these principles, we have recognized that when the legislature seeks to punish the use of a firearm as a criminal act, the term `firearm' must not be unreasonably restricted by judicial construction such that the legislative intent is thereby frustrated." Id. at 581, 562 S.E.2d at 144 (citations omitted).
Similarly, when the nature of some other criminal act is defined by whether the defendant achieves his purpose through the use of a firearm, a narrow construction of the term is not warranted. See, e.g., Johnson v. Commonwealth, 209 Va. 291, 296, 163 S.E.2d 570, 574 (1968) (charge that attempted robbery involved "`presenting of firearms or other violence'" did not warrant jury instruction that the instrument displayed was an operable firearm).
Id. at 582, 562 S.E.2d at 144.
It is clear that while the General Assembly did not define the word firearm in Code § 18.2-53.1, both the Supreme Court of Virginia and this Court have construed the General Assembly's intended meaning of this term and have set forth parameters of what does and does not constitute a firearm under the statute. "[B]ecause Code § 18.2-53.1 is aimed at preventing actual physical injury or death, the term `firearm' includes any instrument that is capable of expelling a projectile by force or gunpowder." Thomas, 25 Va.App. at 685, 492 S.E.2d at 462 (citing Holloman, 221 Va. at 198-99, 269 S.E.2d at 357-58). As importantly, the term firearm in Code § 18.2-53.1 also includes other objects that are not capable of firing projectiles but give the appearance of being able to do so. Id.; see also Miller, 23 Va.App. at 211-13, 475 S.E.2d at 829-30 (determining that a rusted, inoperable revolver was a firearm within the meaning of Code § 18.2-53.1).
After making a detailed inquiry into the meaning of the term firearm under Code § 18.2-53.1, we find that "a mistake exists in our prior decisions." Selected Risks Ins. Co. v. Dean, 233 Va. 260, 265, 355 S.E.2d 579, 581 (1987) (citation omitted). "[W]hen a court of last resort has established a precedent, after full deliberation upon the issue by the court, the precedent will not be treated lightly or ignored, in the absence of flagrant error or mistake." Id. Accordingly, in light of the twofold purpose behind Code § 18.2-53.1 to prevent actual physical injury or death and to discourage criminal conduct that produces fear of physical harm, we exercise our authority under Code § 17.1-402(D) and overrule the decision in Sprouse, 19 Va.App. at 551-52, 453 S.E.2d at 305-06, which held that an object the victim reasonably believed to be a firearm could never constitute a firearm under Code § 18.2-53.1 unless it was in fact a firearm. In so doing, we are mindful of the doctrine of stare decisis and the fact that it "is more than a mere cliche" in Virginia. Selected Risks Ins. Co., 233 Va. at 265, 355 S.E.2d at 581. "Our strong adherence to the doctrine of stare decisis does not, however, compel us to perpetuate what we believe to be an incorrect application of the law. . . ." Nunnally v. Artis, 254 Va. 247, 253, 492 S.E.2d 126, 129 (1997). As Sprouse directly conflicts with the harm that Code § 18.2-53.1 was enacted to prevent, we overrule that decision.
We note that the Court has never addressed this issue en banc. Our prior decisions have all been solely the work of three-judge panels of the Court. While those decisions bind all other three-judge panels under the interpanel accord doctrine, Atkins v. Commonwealth, 54 Va.App. 340, 343 n. 2, 678 S.E.2d 834, 835 n. 2 (2009), they do not bind the Court sitting en banc, see Code § 17.1-402(D). In this respect, multi-panel appellate courts are structurally different from unitary appellate courts. While determinacy concerns underlying stare decisis still play an important role when an en banc appellate court reviews a panel decision, the doctrine cannot be of such force that it binds the en banc court or in any way undermines our duty under Code § 17.1-402(D) to provide full-court review of prior three-judge panel decisions.
The principal utility of determinations by the courts of appeals in banc is to enable the court to maintain its integrity as an institution by making it possible for a majority of its judges always to control and thereby to secure uniformity and continuity in its decisions, while enabling the court at the same time to follow the efficient and time-saving procedure of having panels of three judges hear and decide the vast majority of cases as to which no division exists within the court.
United States v. American-Foreign S.S. Corp., 363 U.S. 685, 689-90, 80 S.Ct. 1336, 1339-40, 4 L.Ed.2d 1491 (1960).
In Wubneh v. Commonwealth, 51 Va.App. 224, 226, 656 S.E.2d 418, 419 (2008), a panel of this Court affirmed a conviction for violating Code § 18.2-53.1 where the appellant challenged the jury instruction used in his case. Specifically, the jury instruction read
[a] firearm is a weapon designed to expel a projectile by the explosion of gunpowder, by spring mechanism, or by pneumatic pressure. It is not necessary that the object actually have the capacity of firing a projectile, provided that it retains enough of its parts that it has not lost its appearance as a firearm.
Id. at 227, 656 S.E.2d at 419. To the extent that Wubneh may be read to hold that a firearm is only a weapon if it is designed to expel a projectile and excludes any object reasonably giving the appearance of being able to do so, we overrule it. Id. at 229, 656 S.E.2d at 420.
In evaluating whether the evidence was sufficient to prove that the item Startin used was a firearm, we must view the evidence in the light most favorable to the Commonwealth, granting to it "all reasonable inferences fairly deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). It is undisputed that Startin possessed an item that looked like an operable firearm during the commission of a robbery. The parties stipulated that the item Startin used during the commission of the two robberies is a replica of a military firearm that was manufactured and used by all branches of military service for seventy-five years. The record reveals that the primary difference between the Franklin Mint's John Wayne commemorative .45 caliber weapon and the actual .45 caliber weapon used by the military was the putative firearm's inability to chamber and fire ammunition by explosion because the manufacturer did not include a firing pin or other mechanical device necessary to fire a projectile. In all other respects, however, the object appeared the same in size, weight, and shape as the original firearm. See Holloman, 221 Va. at 198, 269 S.E.2d at 358. Startin's replica of a firearm was certainly capable of evoking fear of physical harm. Therefore, we conclude that the trial court did not err in finding that the item Startin used was a firearm for the purposes of Code § 18.2-53.1.
III. CONCLUSION
For the foregoing reasons, we overrule Sprouse and affirm Startin's convictions for use of a firearm during the commission of a felony.
Affirmed.
The majority holds that the replica of a firearm Startin used during the commission of two robberies is a firearm within the meaning of Code § 18.2-53.1. In so holding, it overturns this Court's decision in Sprouse v. Commonwealth, 19 Va.App. 548, 453 S.E.2d 303 (1995), which required the Commonwealth to "prove that the accused actually had a firearm in his possession." Id. at 551, 453 S.E.2d at 305 (emphasis added). For the reasons stated in the panel dissent, Startin v. Commonwealth, 54 Va.App. 778, 792-95, 682 S.E.2d 115, 122-24 (2009) (Elder, J., dissenting), I believe Sprouse was correctly decided. Thus, I would decline to overrule Sprouse, and I respectfully dissent.
I take no issue with the majority's careful and thorough analysis of the evolution of the term firearm as contemplated under Code § 18.2-53.1. And, as the majority correctly notes, the doctrine of stare decisis "`plays a significant role in the orderly administration of justice by assuring consistent, predictable, and balanced application of legal principles.'" Castle v. Lester, 272 Va. 591, 601, 636 S.E.2d 342, 347 (2006) (quoting Pulliam v. Coastal Emergency Servs., Inc., 257 Va. 1, 10, 509 S.E.2d 307, 312 (1999)). Unlike the majority, however, I do not view our decision in Sprouse as "such a flagrant error or mistake" as to amount to "`an incorrect application of the law.'" Harmon v. Sadjadi 273 Va. 184, 197, 639 S.E.2d 294, 302 (2007) (quoting Nunnally v. Artis, 254 Va. 247, 253, 492 S.E.2d 126, 129 (1997)).
I would not be so quick to overturn Sprouse, a decision that has remained valid law for over a decade. We have consistently relied upon Sprouse during this period of time and have either distinguished or harmonized its principles in accordance with the mandates of Code § 18.2-53.1. See, e.g., Wubneh v. Commonwealth, 51 Va.App. 224, 230 n. 5, 656 S.E.2d 418, 421 n. 5 (2008) (noting that the jury instruction was "consistent with Sprouse in requiring that the subject instrument be `designed' as a 'weapon' to `expel a projectile' (even if it does not have the `actual[] . . . capability of firing a projectile, provided . . . it has not lost its appearance as a firearm')" (quoting Virginia Model Jury Instructions, Criminal, No. 18.702)); Thomas v. Commonwealth, 25 Va.App. 681, 687, 492 S.E.2d 460, 463 (1997) (affirming the defendant's conviction based on "[b]oth the victim's observations of the pistol during the robbery and an examination of the pistol itself," which demonstrated the BB gun had firing capability and "gave the appearance of having a firing capability"); Miller v. Commonwealth, 23 Va.App. 208, 213, 475 S.E.2d 828, 830 (1996) (noting "rust on the gun did not affect its appearance" and "that the weapon had not `lost its identity as a firearm'"); Elmore v. Commonwealth, 22 Va.App. 424, 428-30, 470 S.E.2d 588, 589-90 (1996) (distinguishing Sprouse on the ground that the gun was not recovered and thus could not contradict the circumstantial evidence that "the defendant gave [the victim] a note stating that he had a `gun,' pointed to his pocket and said that he did not want to hurt anyone"). Moreover, we have declined to reevaluate Sprouse en banc since it was decided. See Code § 17.1-402(D) (authorizing this Court to "overrule any decision by any panel or of the full court" either "upon its own motion at any time" or "when any judge of any panel . . . certif[ies] that . . . a decision of such panel is in conflict with a prior decision" (emphasis added)). Having properly accommodated Sprouse at the panel stage and declined to address it previously en banc when granted the opportunity to do so, we should be wary of reversing those principles now.
I believe Sprouse should remain valid precedent in interpreting Code § 18.2-53.1. I further believe the principles enunciated in that decision mandate the reversal of Startin's convictions for use of a firearm during the commission of a felony. Thus, I respectfully dissent from the majority's affirmance of Startin's convictions.